Director of Public Prosecutions (ACT) v Shui (a pseudonym)

The Supreme Court of the Australian Capital Territory was called upon to determine the extent to which the identity of defendants in confiscation of criminal assets proceedings should be protected from public disclosure. The case involved proceedings brought by the Director of Public Prosecutions against various defendants, seeking various orders under the Confiscation of Criminal Assets Act 2003 (ACT). In the course of those proceedings, the Director had made two applications for restraining orders, heard in closed court and supported by affidavits. The Age Company Pty Ltd, the proprietor of several mass media publications, subsequently sought leave to inspect and uplift those affidavits. The application was heard in open court, and leave was granted to The Age to inspect and uplift redacted versions of the affidavits. The court was required to decide whether the names of the defendants, and certain redactions of the judgment, should be prohibited from publication in order to preserve the defendants' anonymity.

The court considered the principle of open justice, which requires that justice be administered in public, and that court proceedings be openly reported. This principle is balanced by the need to protect the privacy and reputation of individuals, particularly where they are not the subject of criminal proceedings. The court noted that the confiscation proceedings had been conducted in closed court and that there were no criminal proceedings against the first defendant in contemplation. The publication of the first defendant's name in the context of allegations of serious criminal conduct, without the opportunity for her to defend herself in criminal proceedings, could damage her reputation. The court also considered that the publication of the names of the first and sixth defendants could defeat the subject matter of an appeal against the order granting access to the affidavits. The court concluded that the names of the first and sixth defendants should not be published at that stage, at least pending determination of the appeal against the order granting access to the affidavits. The court also found that the proposed redactions to the judgment were not justified, and that the judgment should be published in unredacted form.

The court made orders that the first defendant be referred to by the pseudonym "Vivian Shui" and that the sixth defendant be referred to by the pseudonym "Vivian Pty Ltd". The court certified that the reasons for judgment were a true copy of the judgment.